There is no concrete answer regarding the legality of prostitution in India. Around the world, countries like Argentina, Canada, the Netherlands & Germany have taken effective steps to decriminalize this profession, by initiating regulations for the industry and subjecting it to the labour laws of the country like any other profession. Prostitutes are duly registered in the employment list, and the municipality oversees the matters regarding their healthy working conditions. Prostitutes pay taxes and charge VAT on the service they offer.
Prostitution has been defined under section 2(f) of the Immoral Traffic (Prevention) Act of 1956 (PITA).Prostitution, per se, is not a criminal offence, however certain acts like managing a brothel, living off of a prostitute’s earnings, soliciting or luring a person into prostitution, trafficking of children and women for prostitution, etc. constitute a crime under the PITA. The law permits prostitutes to carry on their trade privately, but they cannot legally solicit customers in public i.e., prostitution is not allowed in a span of 200 yards of a public place.
At times different sections of the IPC are charged on prostitutes. Offences like public indecency (Section 294) and public nuisance (Section 268)are made out against them. The underlying problem here is the lack of knowledge among the sex workers regarding their rights and lack of clarity in the definitions of the offences they are charged with. Most of the time, sex workers are mentally and physically harassed by officials and are left to their whims and fancies.
PITA was enacted to limit and abolish illegal prostitution in India. It penalizes those who facilitate and abet commercial sexual exploitation including those who seek sexual services and those who manage brothels. It also provides for the rehabilitation of victims in form of protective homes.
Loopholes of PITA
PITA doesn’t clearly define the terms ‘trafficking’ and ‘commercial sexual exploitation’. The focus is on defining brothels as the epicenter of sexual exploitation and thus punishing the facilitators of commercial sexual exploitation in brothels. What remains unclear therefore is the actual offence. Is engaging in prostitution a crime or trafficking for prostitution a crime?
The assumption that prostitution takes place only in brothels is a limitation of this Act. Thus, sexual exploitation takes place in private places other than brothels and is not covered under this Act. Today commercial sexual exploitation happens in hotels and clubs in the form of escort services.
The treatment of victims as offenders and sending them to ‘corrective’ homes is contradictory to the fact that a victim cannot at the same time be an offender. Most prostitutes fall into the profession after being forced by circumstances beyond their control. The Government in viewing them as offenders is adding fuel to the already existing stigma around them.
By defining prostitution as commercial sexual exploitation, the Act fails to recognize the people who enter into the profession voluntarily for a better livelihood. The existing practice of recruiting young girls for prostitution under the garb of religion is not covered under the Act as well.
Surprisingly, these laws are confined only to women in prostitution as it is always viewed as a ‘women only’ occupation. Many are unaware of the existence of male prostitutes in India. The non-recognition of male prostitutes, who co-habit with a female prostitute leads to the assumption that he is her pimp. This assumption as a result of the non-recognition of male prostitutes, leads to their punishment.
The Right to Life enshrined under Article 21 of the Indian Constitution is also applicable to a prostitute. This was recognized in the case of Budhadev Karmaskar v. State of West Bengal. The Court stated that sex workers were also human beings and that they had the right not to be assaulted or murdered. The judgment also highlighted the plight of sex workers and empathized with the women who were compelled into prostitution out of abject poverty. Further the Central and State Governments were directed to open rehabilitation centres aimed at imparting vocational and technical skills like sewing, so that they could earn a livelihood. Following the judgment, the Immoral Traffic (Prevention) Act incorporated Section 21 which directs the State Government to establish and maintain protection homes which would be regulated by licenses issued to them.
Abolition of prostitution is a herculean task and is practically impossible because there are nearly 3 million people engaged in sex work in India.
Pros of legalizing prostitution
If prostitution is legalized, the State will acquire the responsibility of managing brothels. The State can formulate guidelines regarding the age limits of prostitutes, their remuneration, access to medical facilities and education for their children and create a database to store this information. Legalizing prostitution can eradicate sex rackets and abuse of prostitutes.
We cannot deny the physical abuse and violence inflicted on prostitutes by pimps and clients. Prostitutes in countries where prostitution is illegal are less likely to report to the authorities, violence against them. To an extent, legalization of prostitution can help in protecting women from violence and physical abuse.
Unlike illegal prostitution wherein sex workers might be forced to engage in unprotected sex, decriminalizing it can allow the State to mandate the use of protection while engaging in commercial sex and for the workers to get regularly tested for sexually transmitted diseases. Those who wish to relinquish the profession can do so with the help of authorities.
Cons of legalizing prostitution
Legalizing prostitution will be misinterpreted as the promulgation of prostitution. This could pave way for easy money for prostitutes and would encourage more women to practice prostitution. There are chances of an increase in human trafficking because poverty-stricken families would be forced to sell off their children to sexual predators for money. If prostitution is legalized more children will be forced into this profession.
Jimmy Carter, the 39th President of the United States said “Some assert that this profession can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it. But I cannot accept a policy prescription that codifies such a pernicious form of violence against women. Normalizing the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold”.
- Ensuring that the Human Rights Commissions at the State and National level are made more accountable for sex workers, to report their issues.
- Provide them free legal aid services and ensure that these are offered by lawyers trained in issues of sex workers.
- Implementation of the Supreme Court’s recommendations to issue necessary identification documents must be done as soon as possible.
- Ensuring the empowerment, active participation and leadership of sex work networks, federations, and collectives in designing policies and processes related to them.
- Their issues are best understood only after consulting them. To do what is best for them is possible by including them in the drafting of policies related to their issues.
- Preventing the children of sex workers from entering the profession by giving them better opportunities to study, grow and develop their talents.
- Many children of prostitutes, are still left in different corners of the country, mocked, and insulted by the so-called “privileged” class. The Government needs to take greater initiatives to educate and bring these children to the forefront of society.
Many NGOs have taken this initiative. The greatest example is that of “Kranti’, a Non-Governmental Organization that empowers girls from Mumbai’s red-light areas to become agents of social change. Kranti believes that when daughters of sex workers have access to the same education, training and opportunities as people from privileged backgrounds, they can reach great heights and become strong leaders with great visions. Today they are touring the world and performing their street play “Laal Batti Express” to break the stigma society has against their mothers.
The social evil that is human trafficking has led to the degradation of the status of prostitutes. A social change is needed to pull this downtrodden section of society out of the trenches of poverty and humiliation. Change in the form of legalising the profession has its pros and cons. The implications of legalising prostitution have equal weight on both sides of the debate. It is thus, when such a dilemma has arisen, that awareness becomes the only way forward for their upliftment and empowerment. It is high time that the World knows their side of the story. It is only then will we be able to accept their true identity.